No. 96-8553A
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
IN RE MICHAEL T. KORANDO, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
JOEL M. GERSHOWITZ
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
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QUESTION PRESENTED
Whether petitioner is entitled to a writ of mandamus
compelling the district court to rule on his motion under 28
U.S.C. 2255.
(I)
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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
No. 96-8553
IN RE MICHAEL T. KORANDO, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The minute order of the court of appeals denying the petition
for a writ of mandamus, App. A, infra, is unreported. The district
court order staying proceedings on the 28 U.S.C. 2255 motion is
also unreported. 1
JURISDICTION
The judgment of the court of appeals was entered on February
26, 1997. The petition for a writ of mandamus was filed on April
___________________(footnotes)
1 Our efforts to locate a copy of this order have been
unsuccessful. The order is noted on the docket sheet as "ORDER by
Chief Judge J.P. Gilbert * * * staying ruling pending decision from
USCA-7 as to Michael T. Korando Jr."
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8, 1997. The jurisdiction of this Court rests on 28 U.S.C.
1651(a).
STATEMENT
1. On April 22, 1993, following a jury trial in the United
States District Court for the Southern District of Illinois,
petitioner was convicted of conspiring to commit two arsons as part
of an insurance fraud, in violation of 18 U.S.C. 1962 (d). Gov't
C.A. Br. in United States v. Korando, No. 95-3071, filed November
8, 1995 (hereafter "Gov't C.A. Br."), at 3. Petitioner was
sentenced to 78 months' imprisonment and ordered to pay restitution
in the amount of 55,978.15. Ibid. On July 6, 1994, the court of
appeals affirmed petitioner's conviction but vacated the order of
restitution and remanded the case to the district court for further
consideration of that order. United States v. Korando, 29 F.3d
1114 (7th Cir. 1994). On August 17, 1995, the district court
reduced the amount of restitution to 38,000 and directed
petitioner to pay that sum from his prison earnings or from his
earnings following his release from prison. Gov't C.A. Br. 3.
Petitioner's appeal from the revised order of restitution is
currently pending in the court of appeals. United States v.
Korando, No. 95-3071 (appeal filed, Aug. 25, 1995).
2. On March 14, 1996, petitioner filed in the district court
a motion under 28 U.S.C. 2255 to vacate his sentence. Pet. 7. In
that motion petitioner raised several claims, including lack of
subject matter jurisdiction, evidentiary insufficiency,
prosecutorial misconduct, jury bias, double jeopardy, ineffective
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assistance of counsel, and instructional error. Id. at 9-14. On
February 6, 1997, the district court issued a stay of its
proceedings on the Section 2255 motion pending the court of
appeals' disposition of petitioner's appeal from the revised
restitution order. Id. at 7.
On January 9, 1997, petitioner filed a petition in the court
of appeals for a writ of mandamus compelling the district court to
rule on the Section 2255 motion. Pet. 7. On February 26, 1997,
the court of appeals denied the mandamus petition "[i]n light of
the district court's order of February 16, 1997, staying
proceedings in the underlying habeas case pending resolution of Mr.
Korando's direct appeal by this court." App. A., infra.
ARGUMENT
Petitioner seeks a writ of mandamus from this Court directing
the district court to rule on his Section 2255 motion. Petitioner
has not made the showing necessary for the issuance of such a writ.
See S. Ct. R. 20.1 (petition must show that writ will be in aid of
Court's appellate jurisdiction, that exceptional circumstances
warrant issuance, and that adequate relief cannot otherwise be
obtained). Mandamus is an extraordinary remedy appropriate only
if a lower court has clearly abused its discretion or exceeded its
authority. A petitioner must have no other means of relief and he
must show that he has a clear and undisputed right to the relief he
seeks. See, e.g., Mallard v. United States District Court, 490
U.S. 296, 308-309 (1989); Kerr v. United States District Court, 426
U.S. 394, 402-403 (1976). Here, petitioner has available another
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avenue of relief: he can file a motion in the district court
requesting that it lift the stay of proceedings on the Section 2255
motion. Because there is no indication that petitioner filed such
a motion before seeking mandamus in the court of appeals, that
court correctly refused to issue a writ of mandamus. Petitioner is
not entitled to the extraordinary relief he seeks from this Court.
Petitioner has also not demonstrated any right to the relief
he seeks, much less a clear and undisputed right. Petitioner
asserts (Pet. 8-9, 14-15) that he is entitled to an order directing
the district court to rule on his motion under Section 2255 because
it had been pending for ten months at the time he filed his
mandamus petition. In making that argument petitioner relies on
the word "prompt" which appears in the text of Section 2255:
Unless the motion and the files and record of the
case conclusively show that the prisoner is entitled to
no relief, the court shall cause notice thereof to be
served upon the United States attorney; grant a prompt
hearing thereon, determine the issues and make findings
of fact and conclusions of law with respect thereto.
28 U.S.C. 2255 (emphasis added). A ten-month delay in ruling on a
Section 2255 motion, however, does not call for the issuance of a
writ of mandamus. Petitioner mistakenly relies (Pet. 8, 15) on
cases construing 28 U.S.C. 2243, which, unlike Section 2255,
contains specific time deadlines.
Petitioners further argues (Pet. 15-16) that the district court
erred in holding his Section 2255 motion in abeyance during the
pendency of his direct appeal. As this Court recently stated, "The
District Court has broad discretion to stay proceedings as an
incident to its power to control its own docket." Clinton v.
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Jones, No. 95-1853, Slip Op. at 25 (U.S. Sup. Ct. May 27, 1997).
According to petitioner, the district court abused its discretion
in granting the stay because it was under the erroneous impression
that the pending appeal deprived it of jurisdiction to rule on the
Section 2255 motion. But if the court believed that it lacked
jurisdiction to address the Section 2255 motion, the correct
response would have been to dismiss the motion rather than staying
it. See Fed. R. Civ. P. 12(h) (3) ("Whenever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action."); Rule 12 of the Rules Governing Section 2255 Proceedings
("[T]he district court may * * * apply the Federal Rules of
Criminal Procedure or the Federal Rules of Civil Procedure,
whichever it deems most appropriate, to motions filed under these
rules."). Accordingly, petitioner has not shown that the district
court abused its discretion in staying the Section 2255 motion
pending the disposition of his direct appeal.
CONCLUSION
The petition for a writ of mandamus should be denied.
Respectfully submitted.
WALTER DELLINGER
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
JOEL M. GERSHOWITZ
Attorney
JUNE 1997
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UNITED STATES COURT of Appeals dh
For the Seventh Circuit
Chicago, Illinois 60604
February 26, 1997
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
IN THE MATTER OF: ] Petition for Writ
MICHAEL T. KORANDO, JR., ] of Mandamus
Petitioner. ]
No. 97-8003 ] Southern District
]of Illinois, Benton
]Division
]No. 92 C 40052
]
The following are before the court:
1. PETITION FOR WRIT OF MANDAMUS, filed January 10, 1997, by
the pro se petitioner.
2. APPLICATION TO PROCEED IN FORMA PAUPERIS, filed January
10, 1997 by the pro se petitioner.
The Prison Litigation Reform Act of 1996, Pub. L. 104-132, 110
Stat. 1214, does not require the court to assess appellate fees
against the petitioner as the Act does not apply to petitions for
a writ of mandamus filed in cases where the underlying litigation
is a petition for a writ of habeas corpus. Martin v. United
States, 96 F.3d 853 (7th Cir. 1996).
In light of the district court's order of February 16, 1997,
staying proceedings in the underlying habeas case pending
resolution of Mr. Korando's direct appeal by this court, #1 is
DENIED. #2 is DENIED as moot.
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